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According to the WTO website, “[o]n 13 February 2012, India requested consultations with Turkey under the dispute settlement system concerning the latter’s safeguard measures on import of cotton yarn (other than sewing thread).” More information, as and when available, can be found here (DS428).

It is interesting to recall that India and Turkey have had a previous dispute regarding certain quantitative restrictions imposed by Turkey on the imports of certain textile and clothing products from India (DS34). That dispute was finally decided by the Appellate Body on 22 October 1999.

Australia’s ruling Labour Party recently voted to allow the sale of Uranium to India. The decision was taken at the 46th national conference of the Party, with 206 votes for and185 against.

The Problem

However, even as we may be one step closer to the revocation of Australia’s Uranium sale ban, according to Don Rothwell of ANU, the sale of any Uranium by Australia to India would be inconsistent with Australia’s obligations under the South Pacific Nuclear Free Zone Treaty (“Rarotonga Treaty”; Wiki here; full text here). The Rarotonga Treaty aims at creating a nuclear-weapon-free-zone in the South Pacific. Here is a map identifying the states that have signed and ratified the Treaty:

Parties to the Rarotonga Treaty

Although India is not a party to the Rarotonga Treaty, and therefore not bound by it, the Treaty imposes obligations upon Australia that restrict its ability to supply fissionable materials and equipments to other states. Specifically, Article of the Treaty titled “Peaceful Nuclear Activities” provides:

Each Party undertakes:

(a) not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material for peaceful purposes to:

(i) any non-nuclear-weapon State unless subject to the safeguards required by Article III.1 of the NPT, or

(ii) any nuclear-weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA).

Any such provisions shall be in accordance with strict non-proliferation measures to provide assurance of exclusively peaceful non-explosive use;

(b) to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system.

For the purposes for Article 4, “nuclear-weapon states” are the five nuclear weapon states party to the Nuclear Non-Proliferation Treaty (NPT) (US, UK, Russia, France and China).

Applying the provision to the scenario at hand, Article 4 prohibits Australia from supplying Uranium to India, unless India agrees to the safeguards required by Article III.1 of the NPT. As readers may be aware, India did sign a safeguards agreement with the IAEA (yet to be ratified by India) as a part of the recently concluded and much controversial civil nuclear deal with the US. However, the key issue, as Rothwell notes, is the scope of the safeguards India has accepted. Specifically, the India safeguards agreement with the IAEA is based upon the IAEA’s “facility specific” safeguards (INFCERC 66 Rev. 2), with some India specific modifications. Under this “facility specific” agreement, India has only accepted safeguards on certain foreign-supplied reactors and facilities.

Article 4 of the Rarotonga Treaty, on the other hand, requires India to accept safeguards provided for in Article III.1 of the NPT in order for Australia to supply it Uranium. The safeguards agreement required of non-nuclear weapons state under Article III.1 of the NPT is a “comprehensive safeguards agreement” (a.k.a. “full scope safeguards”). The IAEA has issued a standardized form of such a comprehensive safeguards agreement (INFCIRC 153), with the basic obligation thereunder being:

to accept safeguards…on all source or special fissionable material…for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

As such, it does seem that international law requires India, as a non-nuclear weapon state, to agree to comprehensive safeguards with the IAEA in case it wishes to source Uranium from Australia. A comprehensive safeguards agreement would require India to, amongst others, subject all its nuclear facilities (both civilian and military) to IAEA safeguards. Since the current India-IAEA safeguards agreement is facility specific, it appears that Article 4 prohibits Australia from supplying Uranium to India. If the deal does go forward, which looks quite likely in light of the recent vote, It will be interesting to hear the Gillard government’s position on this.

A way out?

The above analysis flows from a strict interpretation of Article 4 of the Rarotonga Treaty, which undoubtedly suggests that under the current situation the Treaty prohibits Australia from supplying Uranium to India. Joelien Pretorius of the University of Western Cape, in a recent analysis (paywalled) of the Pelindaba Treaty (establishing the African Nuclear Free Weapons Zone) and Africa-India nuclear cooperation, however, offers possible alternatives to the conclusion reached above.

Although Pretorius agrees that a strict interpretation of Article 9 of the Pelindaba Treaty leaves no doubt that African states party to the Treaty cannot supply Uranium to India under India’s present safeguards arrangement, she notes that a “minimalist” interpretation of the Pelindaba Treaty would legalize Uranium exports to India. Such minimalist interpretation relies upon the text of Annex II, paragraph 3 of the Treaty. Annex II concerns the safeguards that member states have to sign with the IAEA. Paragraph 3 reads:

For the purpose of this Treaty, the safeguards referred to in paragraph 1 above shall have as their purpose the verification of the non-diversion of nuclear material from peaceful nuclear activities to nuclear explosive devices or for purposes unknown.’

Based on this requirement, Pretorius argues:

If this restricted meaning of a safeguard agreement is extended to what is expected of recipient states, the India specific IAEA safeguard agreement arguably meets this requirement, as it establishes verification of non-diversion from India’s civil to military programmes.

Although Pretorius offers such an interpretation she does go on to add a cautious note that this would be a “disingenuous attempt to evade Article 9(c)’s explicit prohibition of uranium exports to states without comprehensive safeguards.”

Since the text of Annex II of the Pelindaba Treaty is very similar to the text of Annex 2 of the Rarotonga Treaty, such a minimalist interpretation may be also be possible under the Rarotonga Treaty. One point to note, however, is that the respective Annexes of both the treaties describe IAEA safeguards with respect to provisions other than the one which explicitly concerns the supply of Uranium to India. Thus, paragraph 1 of Annex II of the Pelindaba Treaty concerns “safeguards referred to in subparagraph (b) of the article 9”, whereas the provision applicable to Uranium supply to India is Article 9(c). Similarly, Annex 2 of the Rarotonga Treaty concerns “safeguards referred to in Article 8”, whereas Article 4 is the relevant provision for the supply of Uranium to India.

Apart from such textual interpretation, Pretorius also offers a possible way out based on a contextual and teleological reading of the Pelindaba Treaty and notes:

In this respect, it could be argued that India–Africa civilian nuclear cooperation has the potential to promote the Pelindaba Treaty’s goal of reaping the economic benefits of nuclear energy for development.

[…]

[I]t it would be in the interest of African leaders to move beyond a romanticised notion of a common non-aligned identity with India, and develop a comprehensive understanding of the health, environmental and economic implications of increased uranium mining and exports to India, before they enter into agreements with India. If signatories to the Pelindaba Treaty see fit to evade the explicit prohibition on trade with non-nuclear weapon states (which India remains per the NPT definition) without an IAEA comprehensive safeguard agreement, the treaty’s emphasis on human security should, at least, be taken seriously.

This contextual reading of the Pelindaba Treaty is obviously treaty and region specific, however, a similar analysis under the Rarotonga Treaty could offer a starting point for justifying the supply of Uranium by Australia to India under the relevant rules of international law.

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